Divorce: Let's get realistic

 

So... your marriage is at its end and you want to get what is yours... Right...?

This entire idea of getting what is due is what keeps us attorneys working. If you have never been in Court before, however, you soon learn that having a right and enforcing a right are two different things altogether.

For one- having our constitutional rights cost nothing. Having those rights enforced, however, cost money- especially if it is a right to receive an exact percentage of property...

A defended / contested divorce can easily cost over R 100 000 just by letting the client pursue everything that he/ she wants out of the dispute. In most cases, however, what the client actually gets from fighting to the very end is far less than what it has costed.

Television and movies have romanticised the idea of acrimonious divorces where one party financially ruins the other. These movies and television shows should, however, give a warning for viewers to not try the same thing at home as trying to imitate the heroines in these stories has left many people with huge unpaid legal bills and no gratification.

So- if you are not going to walk out of your divorce rich- what can you expect?

Well- here are the realities that all divorces have in common:

1. You are now on your own- ...at least until you marry again or get yourself into a new relationship...

2. The other spouse has his/ her own life to deal with now. If you have children between you- be civil about it, because as divorcees each of you will have his/ her own problems to deal with and you can no longer count on that person for assistance or support in any other matter than that of caring for your children.

3. Your spouse does not want to give you any money. Not just money- but also any part of the assets that you have between you, be it accrued assets in a marriage out of community with accrual or assets in a joint estate. Don't be surprised if you find him selling off assets left and right after he has received the summons. If you want maintenance- be prepared to go all the way to hearing. Simply asking him to pay extra or writing a letter to his Attorney will not help...

4. Court processes take long. I mean, really, they can take years to finalise. If you do not have the stamina for years of fighting- settle for what is on the table.

5. Life is not as it was when you were married. You used to live in a house that was afforded with your joint income? Now you live in a small apartment and actually have to pay rent out of your income. The water and electricity bill used to be his problem? Now it is yours...

6. The Court no longer cares whose fault it was- Marriage is a choice. Terminating a marriage is also a choice. Nobody is perfect. These three truths are now foremost in the minds of our Judges and Magistrates who hear divorce matters. If you think you are going to score a forfeiture order for showing that your spouse was the first to cheat be prepared- the Court will still order a 50/50 division.

These things are true for all divorces. Along with them other things may or may not occur in various divorces.

So- what is the best thing you can do when you are getting divorced?

Well- there are a couple of things:

1. Get your finances in order: That maintenance payment is not reliable and enforcing it when it gets skipped takes time. Have a backup plan for when that money does not arrive;

2. Mediate- Yes. The Mediator costs money. So does the Court. You just think that it will be easier for you because you were able to emotionally manipulate your Attorney into accepting installments on your legal bills, but in truth an actual divorce trial in court takes much longer than  mediation and is far more expensive.

3. Apply for contribution- Your spouse has more money than you and now rather wants to litigate you out of pocket? Well... if that is the case you can apply to the court for an order that your spouse pays a contribution towards your legal costs.

4. Don't fight over the children- Seriously, you just look ridiculous doing that. If you and your spouse cannot agree on how the two of you will care and maintain contact with your children a Family Advocate will give guidelines.

5. Budget for maintenance expenses beforehand. Thinking about maintenance before the claim reaches you or before you institute the claim save you a lot of trouble afterward...

6. Settle- In the end- the freedom to move on and put the unpleasantness behind you will always be the best thing to get out of any divorce. When you get it is up to you. Nothing else is guaranteed. 

Lastly- in the years to come your divorce will be less than an afterthought. Life has a lot to offer each of us. Some of us wish to put it all on hold until we have finished fighting this or that battle. The more time you spend on fighting the longer you are putting life on hold. 

If you want to begin and end your divorce the right way- come and see us.

When Greed Enters My Career

 It looks like the bad news was kept for until after our parents have spent the money on University, PLT and Board Exam. Most people I know have learnt only after being admitted to practice that the legal profession in itself is not very lucrative.

Sure! You see Attorneys living in big houses and driving expensive cars, but in many cases the money for these things did not come from legal work. Even the LSSA at the time of my PMT (Practice Management Training) told us that many of us would end up supplementing our income with additional business ventures because law practices do not make as much money as we would like to believe.

So- many of us have a farm, a rental property or some other source of income to supplement the income from our practices.

Unfortunately some of us easily fall for the temptations of illicit income...

These temptations tend to find us quite easily as we are often placed in an environment where we see exactly how clients and wrongdoers make money and hide it. The truth about schemes such as convincing clients to invest in risky schemes for your own benefit, which is easily forgotten, is that we know about these schemes only because the perpetrators got caught.

Throughout my time in this profession to date I have been kept from risking my career being ended by dishonest means of making money by the simple fear of being struck from the roll. I have spent far too much time preparing for my admission and could simply not develop the skills to do any other kind of work. Once I was admitted this profession took up almost my entire life... 

Once an Attorney is suspended from practice pending the application from the Legal Practice Council he is not allowed to take on any work from clients and he may also not receive any payment from clients whatsoever.

The success rate of appeals against suspensions and ultimately being struck off is not high at all. Also- none of the precedents in case law with regard to applications for re-admission have I seen the applicant succeeding...

Fortune favours SOME of the bold. The others are not so lucky...

Concerning you, the client, it is important for you to know why your Attorney receives money from you and what he does with it. Unless you give specific instructions that money goes straight into the Attorney's trust account from where the Attorney's fees are paid or the money is paid back to you.

That money does not earn interest in your favour. If you know that you will have money kept in trust for months before it gets used you will have to instruct the Attorney in writing to invest the money in an interest bearing account where the interest accumulates in your favour.

The money in an Attorney's trust account is at least insured by the Attorneys' Fidelity Fund in the event that it gets stolen. Just know- however- that bridging finance is specifically excluded from the events for which the funds are insured. You and your Attorney should know better than to use other people's money to buy a house while you are still waiting for your loan's approval...

What happens to my Claim when I die?

If you you have not yet heard of prescription in our law you can count yourself fortunate, because in most cases people don't learn the meaning of this term under good circumstances. While in rare instances it can mean somebody acquiring ownership of immovable property after having occupied it for 30 years in most cases it means that somebody that has taken more than 3 years to finally decide to sue a debtor or wrongdoer has to find out that he can no longer do so, because the debt has been extinguished by the lapse of that period.

In my career I have learnt that one of the most stressful situations in which you can find yourself is being forced to get the Sheriff out of his normal routine to effect service of a summons immediately upon receipt- after having to literally beg a disinterested Clerk of the Court to just issue that same thing earlier that day- because the client has brought the case to you on the day before the claim prescribes.

Back then I worked for another Attorney and having my day disrupted was standard procedure. Now that I work for myself and find myself overcommitted on a daily basis I will most likely not accept such an instruction- unless maybe it comes with a large enough deposit...

 So... in the case of property being just occupied without anyone else laying claim to it the occupier acquires ownership after 30 years? Now- what if somebody wanted to claim ownership, but could not because she passed away before she could do so? This question got asked in the Johannesburg High Court matter Katha v Pillay NO and Others 2024 (1) SA 159 (GJ) where the Executors in the claimant's estate wanted to claim ownership on behalf of the deceased- who had passed away just before the prescription period had lapsed. Now- the guidance offered by the Prescription Act 68 of 1969 merely says that prescription can be delayed in the claimant was prevented by a "superior force" to institute her claim. So- did death count as such a "superior force"? 

Acting Judge Moultrie of the Johannesburg High Court has ruled that it indeed does. The Court further ruled in this matter that prescription was interrupted until an executor was appointed in the late claimant's estate.

Look further down in this Act and you will find in Section 13(h) thereof that this approach is already established by the Act in respect of debts. If a Plaintiff passes away before he can sue the Defendant the prescription of his claim is interrupted until an Executor is appointed. I can tell you- with as long as it takes the Master to appoint Executors nowadays prescription will be halted for a very very long time in such cases...

Now- what happens where somebody has already sued, but dies before the matter is finalised? Well... the matter does not automatically die with the litigant. In this case the decision to proceed with the matter or to withdraw same (if the deceased was the Plaintiff) lies with the Executor. In the case of deceased Defendants the Executors may find themselves forced to continue defending a matter even though they would not want to...

In deciding on whether or not to continue with a court battle started by a deceased person the Executor has to take into account the views of heirs and legatees in the estate as the costs of litigation shall affect their inheritance. 

Do you think your surviving relatives will attach the same value to whatever it is for which you have started an expensive fight..?

Extraordinary Attorney Woo: The Testimony of a witness versus the Submissions made by an Attorney

 

L A Law went by me during the 80's without me ever feeling the need to see even an episode of it.

Somehow Ally McBeal got me hooked in 1997. Then there was the Afrikaans legal drama "Fynskrif"...

 Now- Extraordinary Attorney Woo has found a devoted fan in me.

South Korean actress Eunbin Park plays an autistic young attorney Woo Young Woo in this series who is hired by a large law firm and proves her worth from day 1. Along with her social awkwardness and her seemingly never-ending battle with the revolving door she displays a brilliant legal mind with creative problem solving that amazes her colleagues.

Still- being on the autistic spectrum draws negative attention. Surprisingly enough the first cheap shot at her autism is taken only in the third episode. This was made by a Prosecutor who asked an expert witness the question- Should the submissions of this Attorney bear the same weight in Court as the testimony of the Accused (who is also autistic).

If you read this question and actually wonder what the answer is thereto you should actually read this blog post to learn the answer. This question was never answered in the episode. Attorney Woo did resign because of it, though...

It is true that for a witness' testimony to be even allowed in Court the witness has to be sober and sound of mind. If there are ever concerns about a witness' capacity to testify the Court requests for an assessment to be made by a medical doctor or psychologist before that witness is questioned in trial.

Now what about the Attorney? The thing is- the Attorney does not testify.

The Attorney does ask questions- and as long as there are no objections to the questions they are allowed. The Attorney also makes submissions and delivers arguments. These submissions and arguments are based on the facts that have been placed on record through the witnesses' testimony and any other evidence that is used during the trial. 

In considering the Attorney's submissions and arguments the Judge or Magistrate in any event has to test them against existing law. An Attorney's mental capacity would net even come into consideration when that happens. Think about it- An Attorney who does not know and understand the Law shall not even be able to make any valid submissions to begin with. 

A witness' testimony, however, has to be considered for credibility and reliability.  A witness does not need to know the law in order to testify. In fact- the most credible witnesses know nothing about the law to begin with. It is the testimony of those with legal knowledge that you should watch out for...

One will never know for certain whether a witness tells the truth. The best the Court can do is to at least make certain that the person who testifies before it knows what he is saying and understands what it is to speak the truth. 

That Prosecutor is himself a lawyer and should know this. 

Well... I have to watch the next episode to see if Young Woo returns to work...

If you have any other questions about what you see and hear on legal dramas you can ask me in the comment section.

Rental Housing Disputes- how hard can it be?

 

For most of us the largest part of our income goes into the roof over our heads.

Whether is is the apartment you rent or the house for which you are busy paying off the mortgage.

In the case of an apartment being rented you living in that apartment is the result of a contract between yourself and the owner of that building.

Where there are contracts the risk of legal disputes is always looming nearby. If you are starting to rent for the first time with little or no knowledge of legal processes you may feel at a disadvantage with a landlord who has an attorney ready to evict you at the first sign of trouble.

Here in our country of which the Constitution- and subsequent legislation- has gone a long way to protect a person's right to a home you may be pleased to know that the law does protect you.

As a tenant your rights are:

1. The right to privacy;

2. The right to dignity;

3. The right to not be evicted without a court order;

4. Any sale of the leased property should be subject to your lease if it still exists at the time of the sale being concluded. That means- whoever buys the property while you are still renting on it receives you as a tenant. You cannot be forced to just cancel your lease before its expiry just because your landlord has suddenly decided to sell...

These rights are yours- regardless of what your contract says. They are enshrined in the Law and nobody should convince you otherwise.

In addition to those rights your lease agreement also confers certain rights to you. To know what these rights are you will have to read your contract. 

You do, of course, have obligations as well. While your lease agreement may have specified stipulations about parking, gardening and so forth you should know that you don't need a contract to tell you to look after the property and do your best to prevent it becoming damaged. You should also know, of course, that your lawful occupation of the property is directly linked to your payment of the rent. The moment you stop paying rent your occupation becomes unlawful.  

Most of a landlord's rights are enforced in a court of law and we often see an attorney being used to institutes proceedings out of a Magistrates' Court- and in some cases the High Court- aimed at recovering of rent payments or to protect the landlord's interests in the property.

As for the tenant- these courts are available to him, but most of the rights that are mentioned above can be protected without the help of a lawyer by the Rental Housing Tribunal.

I have had a very positive experience with our local rental housing tribunal and have found that even landlords receive help from this forum much sooner and at far lesser cost than what is the case with our civil courts.

If you however still feel stuck in spite of what I have said in this post you are welcome to give me a call...

My Approach to Contracts

 

If there ever was evidence of the human being's inherent treachery it is a contract.

A bright eyed law student will tell you that a contract is an agreement and that same student will probably recite with enthusiasm that an agreement is the result of a meeting of minds. Life on this earth will quickly teach you, however, that signing a contract often brings about consequences to which no right-minded person would have agreed to if there ever was a meeting of minds.

You show me the contract and I will tell you what kind of person is behind the drafting thereof.

Contracts consisting of nearly microscopic fine print covering more than 1 page (that parties are expected to have noticed and remembered at the time of signing) are drafted by control freaks who seem to want the contract to enforce itself. They remind me of those hell-bent old ladies who try to rule their children's lives from the grave one day...

Contracts that say less than what is necessary are drafted by people who are ignorant of the law of contracts and who don't care to get legal assistance.

Contracts using words and terminology that are not understandable to either of the parties signing were drafted by legal practitioners who seek to justify the hefty price for the contract by demontrating how many Latin words and jargon they know.

Now- how do I approach the drafting of a contract?

Well- I want to make certain that all parties to the contract know what they are letting themselves in for. The smallest print that I have ever used in the drafting of a contract is Callibri 11. I reserve my knowledge of big words for when I have to explain somebody else's contract to a client. Lastly- I make sure that both parties know how disputes arising from the contract shall be resolved.

Now- you may ask- is a contract not supposed to be fancy with at least 5 000 words to be "iron clad"?

The law does not require that at all. What the law requires for a contract to have is:

1) A meeting of minds (also known as consensus);

2) The execution of the contract must be possible;

3) The execution of the contract must be legal.

With that last requirement one may laugh when you wonder who on earth would sign a contract to work as a drug runner on a street corner, but it gets more serious when you realise that many employers, service providers and other kinds of people who look down at you from a dizzy height often try to have you sign away your rights. In many cases certain rights can indeed be waived by agreement- or signed away if you will-, but in some cases a contracting party goes to far without the other even noticing.

Outdated provisions for notices pertaining to the agreement being sent by registered post are redundant in this day and age. I don't even bother to ask for a postal address anymore. 

I don't mind using dispute resolution clauses providing for arbitration as a dispute resolution process to follow before the Court is involved. I have to date hereof, however, not see the need to make the arbitration process more expensive than the court proceedings that are almost certain to follow by insisting that an Arbitrator be a Senior Counsel that charges R 50 000 per day. An Arbitrator from the Association of Arbitrators is adequate. 

The large print that I use deters me from sneaking in any clauses that provide for surcharges or other consequences that would deter a party from signing.

Even though a contract cannot eliminate all disputes- disputes that do arise can be managed and regulated by clauses providing for what kind of evidence shall be deemed sufficient and what presumptions shall be held until rebutted.

These days we learn more than ever how important good relations are between vendors and clients. Trust is an important part of such good relations. Unlike what many heirs of the previous generation would have you believe it is possible to create and foster a healthy and comfortable business relationship whilst both parties rights are secured and recognised. 

It is simply up to us to act in good faith.

Loadshedding: Where are the Lawyers?

 

Standing up to corruption in South Africa is bad for your health. I think we all know that.

By now I have heard of policemen that choose to rather not investigate murders for fear of retaliation from police officers who are actually involved in same. As unpopular as I have made myself in certain circles I have received my fair share of threats and verbal abuse from public servants whom I have dared to ask to just do their work. Still- I love standing up to those who abuse their power and I still do not get tired of making sure that those who want to laze about in their offices while being paid with our tax money actually get to do some work...

It goes without saying that I was going to buy André de Ruyter's book no matter what the cost.

Having read and enjoyed Jacques Pauw's the President's Keepers I knew that I was going to enjoy finding out how the actual reasons for loadshedding compares to the excuses that we were fed via the media for the last couple of years.

Mr De Ruyter did not disappoint. His accounts of struggles with law enforcement and bureacracy was not only believable, but downright relatable. According to him his term at Eskom had him face the following on a daily basis:

- Policy decisions made by Government Departments that were influenced by other considerations (mostly greed and corruption) than securing a reliable electricity supply to South Africa;

- Difficulty in recovering debts owed by Municipalities;

- Unwillingness from law enforcement to investigate and prosecute cases of criminal offenses committed within Eskom and against Eskom (it goes without saying that these offenses were actually committed against us- the people of South Africa...)

- Board Members being more concerned with keeping politicians happy than carrying out their legally imposed mandate.

My first question as I read about all this was- Where were the lawyers...? Yes- I know Eskom has in-house legal advisers and probably Attorneys on contract. Mr De Ruyter even made mention of his own lawyers when he related the events that occurred around the time of his resignation...

I asked:

Where were the lawyers to apply for a mandamus order against the SAPS and the Hawks when clear evidence could be produced of a matter having been referred to them for investigation?

Where were the Labour Law experts to make sure that people within Eskom who did not want to do their jobs would no longer be on the payroll? I especially would have loved to see those employees who had assisted in the committing of the fuel oil and coal fraud dismissed...

Where were the Administrative Law experts to challenge the Department of Mineral Resources and Energy's rejection of a plan that could have ended loadshedding in 6 years' time...?

These lawyers would have needed evidence and from what I have read Mr De Ruyter and those that stood by his side had plenty of that. It just needed to be used properly...

I have finished the book just as the Minister of Justice and Correctional Services issued a regulation that us legal practitioners had to render at least 40 hours of community service per year. It did not take me very long to decide what kind of community service I wanted to render- so I reached out on Facebook...

(Please forgive me if the link does not work. Technology and I have a toxic relationship at times...)

https://web.facebook.com/100001778128460/videos/1430136687587710/

I won't be surprised if  Mr De Ruyter is not the only one with evidence on hand with which to expose and persecute those responsible for the sorry state of our country's electricity supply. If any such person wishes to share useful information with me to use in this Community Service project they are welcome. I will understand if you would choose to remain anonymous.

This invitation is not extended to only those at management level, but also to any employee of Eskom in my area who finds him or herself victimised for just doing his or her job...

If other Attorneys want to step up and offer their services for this cause I can only imagine what change it will bring about. 

Let's start making a change...